Standing Committee F

[Mr. Derek Conway in the Chair]

Justice (Northern Ireland)

Clause 3 - Judicial Appointments Commission

Crispin Blunt: I beg to move amendment No. 7, in page 2, line 38, at end insert—
'( ) Any person who has, at any time, been sentenced to a term of imprisonment whether suspended or otherwise for a term in excess of six months, shall not be permitted to be appointed as a member under subsection (5).'.

Derek Conway: With this it will be convenient to discuss amendment No. 8, in page 2, line 38, at end insert—
'( ) Any person who has ever been a member of a proscribed organisation shall not be permitted to be appointed as a member under subsection (5).'.

Crispin Blunt: I do not want to delay the Committee on these amendments because the arguments behind them are self-evident and common sense. The people of Northern Ireland have every reason to want to have confidence in the Judicial Appointments Commission. However, that would be extremely difficult if the commission's membership included people who had been sentenced to serious offences that entailed imprisonment for a period longer than six months or who were members of proscribed organisations. That would bring the commission into disrepute, and it should be avoided.
 We should look to the 2003 Assembly elections, or the elections in 2007 and thereafter. It is perfectly possible that the First Minister and Deputy First Minister, but especially the latter, will be members of Sinn Fein-IRA. We know that Sinn Fein-IRA are making progress towards becoming Sinn Fein without being inextricably linked with the IRA, and we hope that that progress will continue. The party is on a journey, but it is difficult to know when the IRA will decommission and when the inextricable link—as the Government say it is now—between Sinn Fein and the IRA will be broken. Some would say that those organisations are one and the same, but the link between Sinn Fein and paramilitary violence by an armed group needs to be broken and removed for ever. That is what we all desire. 
 In order for the electorate to have confidence in the Judicial Appointments Commission, it is necessary to restrict the lay membership to ensure that, in the inevitable debate between the First and Deputy First Ministers on the lay membership of the commission, the people specified in the amendment cannot be nominated and cannot become members of the commission. It would not be right for people who have been sentenced to terms of imprisonment in excess of six months—it would plainly be for serious offences—to be involved in the appointment of the 
 judiciary. Nor, in the context of Northern Ireland, is membership of the commission appropriate for people who are believed to be members of proscribed organisations. 
 The object of the amendments is to take that potential controversy out of the picture by ensuring that people with such convictions or members of proscribed organisations cannot be chosen as lay members of the commission. That would help to reinforce people's confidence in the commission.

Lembit Öpik: We have some sympathy with amendment No. 7. Indeed, we put our names to a similar amendment tabled by the hon. Member for North Down (Lady Hermon). I therefore do not need to repeat the arguments that were made. However, I have some slight concerns about amendment No. 8. It seems to take a rather absolutist position, given that some of the people who have claimed to be members of proscribed organisations have gone on to have a positive impact on the peace process. There should be a degree of independence, and we should be a little cautious about a blanket exclusion.
 The sentiment behind the amendments could be more suitably expressed using the terms in the Police (Northern Ireland) Act 2000, under which someone can be prevented from being an independent member of the Policing Board if they are not clearly committed to exclusively peaceful and democratic means. The framing of such a provision is, of course, a matter of judgment, and I shall be interested to hear what the Minister and the hon. Member for Reigate (Mr. Blunt) say in response to my concern.

Des Browne: I am grateful to the hon. Members for Reigate and for Montgomeryshire (Lembit Öpik) for their approach to this issue, which could have occupied us for a considerable time. As the hon. Member for Reigate said, the amendments are straightforward and self-explanatory.
 Amendments Nos. 7 and 8 would prevent those who have served prison sentences or been members of proscribed organisations from being members of the Judicial Appointments Commission. I understood from the contributions of both hon. Gentlemen that everyone agrees that someone with a violent past should not be disqualified from making a contribution to society—subject, of course, to him renouncing violence. That is a fair summation of the position that the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith), the Leader of the Opposition, recently set out. 
 Amendment No. 8 is slightly curious, although that does not alter the debate. The amendment applies not only to those convicted of membership of a proscribed organisation, but to anyone who has been a member of such an organisation, and it is far from clear how that could be demonstrated.

Crispin Blunt: Having listened to the Minister and the hon. Member for Montgomeryshire, and having reconsidered the terms in which I framed amendment No. 8, I shall not press it. Instead, I shall return to the
 issue on Report with an amendment that uses the terms in the Criminal Justice (Terrorism and Conspiracy) Act 1998. The Act refers to someone who is identified in written evidence from a police superintendent or superior officer as currently being a member of a proscribed organisation. That would be a more appropriate way in which to deal with the issue, and I hope that that explanation is helpful.

Des Browne: I am sure that the Committee is grateful to the hon. Gentleman for that clarification, but we should try to deal with the issues—including whether the amendments are worded in the way that hon. Members would want. Subject to the rules of the House, the hon. Member for Reigate, or indeed any hon. Member, can return to an issue on Report, when we would deal with their amendments.
 As the hon. Member for Montgomeryshire said, amendment No. 7 is more straightforward. The test that it imposes for membership of the commission is tougher than that which applies to Members of Parliament or Members of the Legislative Assembly. Indeed, it is tougher than that for many offices in Northern Ireland, even though they deal with a wider range of issues than the Judicial Appointments Commission. 
 The amendments are unnecessary. The First Minister, the Deputy First Minister, the professional bodies and the Lord Chief Justice will take considerable care in making such important appointments. It is highly unlikely—indeed, it is verging on impossible—that they will agree on disreputable candidates with criminal records. Once again, we must decide whether we trust the devolved institutions to act responsibly in making such appointments. As I said in an earlier debate, the Government would not propose a commission if we had any doubts. I therefore urge that the amendment be withdrawn.

Crispin Blunt: I am afraid that the Minister's arguments on amendment No. 7 are not convincing. He said that he could not envisage disreputable candidates being appointed, but I tried in my opening remarks to describe circumstances in which that could happen. If such circumstances cannot be envisaged, what is the harm of giving the community confidence in the Judicial Appointments Commission by adding a provision to the Bill to ensure that that cannot come about?
 The Minister said that the qualification was stronger than that to be a Member of Parliament or a Member of the Legislative Assembly, but the circumstances would be different. If someone could convince the electorate that he deserved a democratic mandate despite his criminal conviction, good luck to him. He would have gained a popular mandate through the democratic process. However, the mandate to appear on the Judicial Appointments Commission is indirect. It is the product of a negotiation between the First Minister and Deputy First Minister, who have to act jointly to produce the candidates. That process will inevitably be opaque to the community. 
 Discussions between the First Minister and Deputy First Minister on appointment issues across the piece, under the duties placed on them in the devolved workings of the Administration in Northern Ireland, will involve give and take and will depend on the relationship between the people in the two posts. From the phrasing of the legislation, it is not my understanding that all discussions between them will be open and minuted, or that all communication between them will be formal. It should not be, as such a system would not work. A degree of trust must be imposed on the people in those posts, so that they work together to make devolved government work in Northern Ireland. 
 That is why the concern must be addressed in the Bill. I had hoped that the Minister would accept the amendment, so I shall press it. It would provide an important reassurance that the Committee should give to the people of Northern Ireland. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 13.

Question accordingly negatived.

Crispin Blunt: I beg to move amendment No. 9, in page 3, line 1, leave out subsection (7).

Derek Conway: With this we may discuss the following amendments: No. 144, in page 3, line 3, leave out 'representative' and insert—
'reflective.'
 No. 145, in page 3, line 3, at end insert— 
', including in terms of gender and ethnicity.'
 No. 90, in page 3, line 3, at end add— 
'( ) In appointing persons to be lay members, the First Minister and deputy First Minister must so far as possible secure that the lay members have a sophisticated understanding of legal issues as well as proven experience in selection procedure.'.

Crispin Blunt: Earlier, the Minister alluded to what he thought were the reasons behind the amendment. He suggested that the amendment was meant to remove the duty in the Bill for the First Minister and Deputy First Minister to ensure, as far as possible, that the lay members, taken together, are representative of the community in Northern Ireland. I want that duty removed from the Bill for reasons opposite to those that the Minister was imputing to me earlier.
 In an earlier debate, the hon. Member for Newry and Armagh (Mr. Mallon) drew attention to the fact that the judiciary in Northern Ireland is largely 
 Unionist and almost entirely male. That point was also made by the hon. Member for North Down. The judiciary in Northern Ireland is a small pool from which to make appointments. Later, we shall discuss the amendment tabled by the hon. Member for Newry and Armagh, which is designed to make the judiciary more reflective of the community. I think that everyone would agree that that would be a desirable outcome, as long as appointments to posts in the judiciary remained subject to the primary test of merit. 
 If the community is to have confidence in the Judicial Appointments Commission, we need to give the First Minister and Deputy First Minister greater freedom in determining the make-up of the lay membership. The commission will have five lay members, five judicial members and two members from the professions. The judiciary is largely male and largely Unionist in outlook. I do not know how that breaks down, or whether the figures are available to the public, but let us take it as a working assumption. In much of the nationalist community in Northern Ireland, that is believed to be the case. However, some of us know of members of the judiciary who are Catholic and therefore probably nationalist, although I realise that those two things do not always coincide. 
 If, because of the pool from which selections are made, the judicial members of the Judicial Appointments Commission were inevitably male Unionists, there would be a proper case for the First Minister and Deputy First Minister to attempt to correct that through their choice of lay members. There is a discipline on the First Minister and the Deputy First Minister, because they must come to an agreement about whom they will propose as lay members. We should not place on them a duty, in choosing the lay members, to ensure that, taken together, they are representative of the community. 
 The Deputy First Minister might say to the First Minister, ''The Judicial Appointments Commission is Unionist and male. Therefore, three or four of the posts on the commission should be taken by female nationalists.'' The First Minister might refuse and demand the appointment of people in his own image, but there might also be a proper discussion at that point about correcting the balance on the commission in order to broaden confidence in the community about the make-up and representativeness of the commission. That should be a matter for discussion between the First Minister and the Deputy First Minister, and no duty should be placed on them with respect to those appointments. 
Mr. Seamus Mallon (Newry and Armagh) rose—
Mr. Browne rose—

Crispin Blunt: If the Minister will forgive me, I shall give way to the hon. Member for Newry and Armagh, as I am particularly interested in what he has to say about this.

Seamus Mallon: The hon. Gentleman has raised a crucial point about representativeness a point to which we are likely to return in connection with various parts of the Bill. He put his finger on part of the problem: is responsibility for representativeness simply to rest on the shoulders of the First Minister and Deputy First
 Minister? Should not that duty and requirement for representativeness apply also to the appointment of judicial members, members of the Bar and members of solicitor's organisations? That is the difficulty. The roles of First Minister and Deputy First Minister should not be to put patches on that which has already failed to deliver. The legislation must ensure that representativeness is also reflected in the appointments made by the Lord Chief Justice, the Bar and the Law Society. The hon. Gentleman made his case well: if that principle of representativeness is not applied to other appointments, the First Minister and Deputy First Minister will be faced with an elastoplast job, which is, in fact, impossible.

Crispin Blunt: I listened with care to the intervention of the hon. Member for Newry and Armagh, but he must appreciate just how small the judiciary in Northern Ireland is and, therefore, just how difficult it will be to achieve those aims.
 That is especially true given our starting point. No one is proposing that the whole judiciary should be sacked and that we should start again to produce a judiciary that is representative according to Equality Commission legislation. I cannot imagine that anyone would suggest that the judiciary should be selected on anything other than merit. Merit must be the first qualification for judicial appointment. Of course, merit includes reputation and proven integrity, so that a judgment of merit will include a judgment about the role that judges are expected to play as impartial arbiters of justice.

Des Browne: I was careful not to intervene until the hon. Gentleman had fully answered the point made by my hon. Friend the Member for Newry and Armagh, because I want to invite him to move his thinking on to another matter.
 Those who read the record of our proceedings may find that there is an apparent contradiction between the contribution from the hon. Member for Reigate in relation to the previous amendment that we considered, when he talked about putting strictures on the activity of the First Minister and Deputy First Minister in relation to appointments to the commission, and the view that he is now taking that they should be given a liberal degree of latitude in dealing with appointments to ensure representativeness. As I understood his earlier argument, it was that there would be an opacity and lack of accountability in their discussions. Will he explain to the Committee where the clarity and accountability lie in his current proposals, because I may want to pray in aid what he says when we return to the other issue?

Crispin Blunt: This point goes to the kernel of the issues surrounding the devolution of justice and, indeed, the devolution of the whole of government in Northern Ireland, the peculiar circumstances in Northern Ireland and the peculiar way in which we have had to draw up all the devolved legislation since the Belfast agreement, creating portfolios for the First Minister and Deputy First Minister. Throughout all the legislation there are references to the First Minister and Deputy First Minister acting jointly. That phrase appears countless times in all the legislation for a
 precise reason: the necessity to secure cross-community agreement in order to give people confidence in the institutions. We have to decide how much authority and responsibility we should devolve to the First Minister and Deputy First Minister, and how much we shall tie their hands.
 Amendment No. 7, in dealing with the issue of sentences for prisoners, would have contributed to maintaining confidence in the system of devolved government—in this instance, a Judicial Appointments Commission—thereby reassuring the community in Northern Ireland and sustaining support for the Belfast agreement and the settlement. The Minister may disagree, but that is why I pressed that amendment to a Division. 
 How will we sustain wider confidence in the Judicial Appointments Commission? The amendment would remove the restriction from the First Minister and the Deputy First Minister to make solely the lay members representative. The Committee has decided that those members need no legal qualifications. The amendment would allow the First Minister and the Deputy First Minister, if they could come to an agreement, to make the Judicial Appointments Commission more representative as a whole, rather than simply ensuring that lay members were representative. If only the lay members must be representative, it will be more difficult for the First Minister and Deputy First Minister to make the whole commission representative of the community. That is the discretion that I seek to give the First Minister and Deputy First Minister.

Des Browne: I understood the hon. Gentleman's argument up to now to be that we needed to liberalise this part of the Bill and remove restrictions to create over-representation in certain areas, in order to correct deficiencies in the representativeness or reflectiveness of the judiciary. I no longer understand his argument. I thought that he was suggesting that we could instate, in numerical terms, an over-representation of nationalist women on the commission, for example, to achieve some discriminatory appointment for judges.

Crispin Blunt: I am afraid that the Minister has misunderstood the argument. I shall try to phrase the issues as clearly as I can.
 The Judicial Appointments Commission, as a whole, should be as representative of the community as possible, but the judicial members of the commission—as with the judiciary itself—will have to be appointed primarily on merit. They would have been selected on merit to be members of the judiciary; indeed, that is the overriding qualification. Inevitably, that provides the potential for that part of the commission to be drawn from one particular part of the community and, at the moment, it is highly likely that those members will be male Unionists. Most of the judiciary is male in Northern Ireland and most of them are Unionists—or so it is perceived, although no one actually knows whether that is the case. That is the situation as it stands, but that position could easily change.

Seamus Mallon: I go back to the difficulty that three sets of people are to be appointed. It is only right that the requirement of merit overrides, but the requirement for representativeness applies in all cases. The hon. Gentleman makes the point that the majority of the judiciary is Unionist and male, which means that representativeness would not be possible. If that were the case, it would tell us something about judicial attitudes.
 By the time the Bill is enacted and the power devolved, changes will have been made to the judiciary. There will have been some natural wastage: people will get older, for example—and, believe you me, by the time this Bill becomes law they certainly will be older. 
 There is another element to the question—[Interruption.] I can see that the Chairman is getting a little worried. I had a thought on my way home after our lengthy discussion about the term, ''resident magistrate''. I cannot, although I have lived all my life in the place, think of a magistrate who is resident in the area where he dispenses law. There are security and other reasons for that.

Derek Conway: Order. Before the hon. Member for Reigate resumes, I remind hon. Members that there have been one or two fairly lengthy interventions—not just by the hon. Member for Newry and Armagh, but also by the Minister. At this stage in the proceedings, when we are dealing with amendments, the flow of the Committee's deliberations is quite easy and opportunistic, so perhaps hon. Members could keep their interventions relevant to the point that is being made. They should not try to make full contributions, because I am sure that they will catch my eye enabling them to make their own contributions in due course.

Crispin Blunt: In view of your comments, Mr. Conway, I shall not follow the lead of the hon. Member for Newry and Armagh and pick up the argument about resident magistrates, except to say that I now take ''resident'' to mean ''permanent''. Perhaps we can return to the point later, if the Government table amendments.
 To return to the main issue, it would be better to omit the subsection, so as to allow the First Minister and Deputy First Minister the latitude to make the Judicial Appointments Commission as representative as possible. They are the people who will have to make the decisions. If there were no requirement for representativeness in the Bill; and if it were thought that the other members of the Judicial Appointments Commission were representative, so that there was no argument about rebalancing the commission through the lay membership to make it more representative of the community, the First Minister and Deputy First Minister would inevitably discuss matters and come up with five members who were representative. That is how the process is designed to work, with some give and take. 
 However, if the First Minister insisted on the appointment of five Unionists, the Deputy First Minister would not agree. Equally, if the Deputy First Minister insisted on five nationalists, the First 
 Minister would not agree. They would get nowhere. If during their argument the Deputy First Minister could say, ''To make the commission as representative of the community as possible, we should rebalance the lay membership in a certain direction,'' he would have a legitimate point to put to the First Minister, who might be convinced of the merits of his argument. It would be up to them. In other areas of their responsibility there might be other rebalancing to be done, with appropriate give and take. 
 We have created a political system in Northern Ireland in which the relationship between the First Minister and the Deputy First Minister is crucial to the success of devolved government. Therefore, we must accept that it will work and that it will be practical. We should have the confidence in the two posts and in the institutions that we have set up, and allow the Ministers to decide on the make-up of the lay membership.

Lembit Öpik: How does the hon. Gentleman feel his proposal will reflect on members who are not traditional Unionists or nationalists? For instance, the Alliance party takes a middle view, and others are similarly placed.

Crispin Blunt: I am concerned that they would lose in the arrangement demanding representativeness. It might be thought that with five members the divvy-up between the four major parties would be automatic and that the Alliance party would take the fifth post, but depending on the results of elections that might not happen. The fifth post might have to go to someone else.

Seamus Mallon: That is an interesting point. We should ask whether we are going for change—as the Bill obviously is. For thirty years or more we have had a situation in Northern Ireland in which ''representative'' means one cassock Catholic, one garden centre Unionist and three lapsed members of the Alliance party at a fight. That time has gone. Whatever the political denomination of the First Minister or Deputy First Minister, it will be necessary to get people from the community to make sure that the commission is representative. That representativeness need not mean a Unionist First Minister and a nationalist Deputy First Minister, or a nationalist First Minister and a Unionist Deputy First Minister. That is the difference. The old formula has to be broken—it did not work, which is why we are in debate now.

Crispin Blunt: I think that I have made my case, and I shall be interested to hear contributions from other Committee members.

Patsy Calton: I am reminded of our discussions about gender and the selection of candidates for this place. Selection on merit has been mentioned several times. As we know from our experiences of the selection process for this place, without guidelines it leads to male institutions. Some believe that so-called merit is not necessarily merit. If we accepted that candidates to be Members of Parliament had been selected entirely on merit, we would have to believe that women were less able than men. Perhaps we are less intelligent. [Interruption] The
 hon. Member for Cleethorpes (Shona McIsaac) says that of course we are. We have equal merit to men—some might say that we are superior, but I would not go that far. It will not surprise hon. Members to hear that our position on amendment No. 9 is that subsection (7) is necessary, and that there should be an indication of how the lay members should be selected.

Crispin Blunt: I do not want to follow the hon. Lady down the path of discussing the respective merit of men and women. We are not talking about democratic selection through the political parties or through the democratic process. Judicial selection and merit are different issues, but they do not go to the kernel of the amendment. The amendment invites the Committee to decide whether we should try to make the commission more representative by giving greater latitude to the First Minister and the Deputy First Minister, or whether we should insist that a duty be placed on those Ministers solely with respect to the representativeness of those five members of the Commission. I hope that the hon. Lady will address that question. In advocating the amendment, I am not arguing about representativeness.

Patsy Calton: I understand the hon. Gentleman's point, but if we leave a vacuum, we will not end up with the result that everybody seems to want, but with a different one. We should include some prescription—not massive amounts, but enough to indicate the outcomes that we want and which we would not otherwise get.

Andrew Turner: The hon. Lady's amendment No. 145 refers to representativeness
in terms of gender and ethnicity
 of the lay members alone. So far as I can see she has not yet dealt with my hon. Friend's argument that the whole Judicial Appointments Commission should reflect the community, not merely the lay members.

Patsy Calton: We are discussing the lay members at the moment, so I am addressing my comments to that issue. If the hon. Gentleman wishes to discuss that issue later—

Andrew Turner: Was not my hon. Friend's point that we cannot discuss the lay members in isolation—if we do, we will not necessarily get a reflective commission?

Patsy Calton: I suggest that these points be put to the Government. I disagree. We are discussing the need to have a truly reflective group of people to be lay members. We should move on.
 Amendments Nos. 144 and 145 might be considered to be splitting hairs, but I think not. We want a change to subsection 7 so that the First Minister and Deputy First Minister have to ensure that lay members of the commission are reflective of the community. I shall explain why we feel that it is important to use the term ''reflective'' rather than ''representative'', as proposed in amendment No. 144. The matter is raised in paragraphs 6.86 and 6.87 of the report of the review of the criminal justice system in Northern Ireland, which address the issue of securing a judiciary that is representative of society. The report says that the matter should be addressed with great care in 
 Northern Ireland, and we agree. Individual judges and magistrates, in carrying out their functions, do not represent any particular section of society. Rather, they should apply objective and impartial consideration to the case before them, regardless of the background of the parties. If judges were to believe that a factor contributing to their appointment was the extent to which they represented one part of society, it would have serious implications for their impartiality. That is why we would like to replace the word ''representative'' with the word ''reflective''. 
 Amendment No. 145 follows through the idea of ensuring that the lay members of the Judicial Appointments Commission are truly reflective of society in Northern Ireland. The words 
in terms of gender and ethnicity''
 will serve as a reminder—not just to those appointing the lay members—that there is much more to society in Northern Ireland than religious groupings. It is all too easy to leave out significant sections of a population, as we know in this place.

Graham Stringer: On a point of order, Mr. Chairman. Given the progress that we are making on the Bill, I should like, with your permission, to move the suspension of the Committee for 10 minutes so that we can have a meeting of the Programming Sub-Committee.
 Sitting suspended. 
 On resuming—

Derek Conway: So that everyone knows where we are, including myself, I should say that we are returning to amendment No. 9. Once we have disposed of the amendment, we shall vote on the amendment to the programme motion before returning to proceedings as on the selection list.

Lady Hermon: I want to support amendment No. 145, which was tabled by the hon. Members for Montgomeryshire and for Cheadle (Mrs. Calton). I also want to speak to amendment No. 90, which I tabled. Like those hon. Members, I am especially concerned that lay members of the Judicial Appointments Commission should be truly representative in terms of gender and ethnicity. The Committee may recall that on Tuesday the hon. Member for Cheadle made a useful intervention on the Minister about the make-up of those on the bench in Northern Ireland. In reply to it, the Minister kindly explained that, so far as he knew, there were no women or members of ethnic minorities on the bench.

Des Browne: As I recollect the question, it related to specific tiers of the judiciary rather than the whole judiciary.

Lady Hermon: I agree. The lay members could be used to address the present imbalance.
 Another reason why I want amendment No. 145 to be made is that various pieces of legislation already use the words 
representative of the community in Northern Ireland.
 The Committee may be surprised to know that, in the recent Evelyn White case, a judge in Northern Ireland interpreted the phrase in relation to the Parades Commission as meaning representative in the sense of Protestant and Catholic, not of men and women, let alone the ethnic minorities. 
 If the Minister were on good form, he would agree to make amendment No. 145, so that the Bill would state that ''representative'' should apply in terms of gender and ethnicity. If he will not do so, I invite him to say that it is his understanding that 
representative of the community in Northern Ireland
 applies in terms of not only religion, but gender and ethnicity. Would he like to do so now, before I move on to amendment No. 90?

Des Browne: I am delighted to accept the hon. Lady's invitation to intervene on her. I intended to tackle the issue in response to the points made, and it may reassure her to know that I intended to use words that would exactly reflect what she wants.

Lady Hermon: Amendment No. 90 relates to the lay members of the new Judicial Appointments Commission. For the ease of members of the Committee, I remind them that it reads:
In appointing persons to be lay members, the First Minister and deputy First Minister must so far as possible secure that the lay members have a sophisticated understanding of legal issues as well as proven experience in selection procedure.
 The rationale behind the amendment derives, as do the words themselves, from international comparisons to other judicial appointment commissions. I am sure that the Minister is familiar with the research reports listed at the back of the criminal justice review. Appendix B contains an exceptionally useful research paper—No. 5, on judicial appointments—by a lady called Colette Blair. She considers international models for appointment commissions in, for example, the Republic of Ireland, South Africa and New Zealand but, alas, not Zimbabwe. She concluded: 
The international models of Appointments Committees have varying degrees of similarity. Most feature a Chief Justice as Chairperson, representatives from the courts, Bar Council and legal profession. When lay members are included they are chosen from individuals with a sophisticated knowledge of appointments procedure and legal issues.
 That language is reflected in amendment No. 90. It seems eminently sensible that the lay members of the commission should follow the suggestion in the review, which states: 
The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates.
 That is what the review team had in mind with regard to lay members. Although the Committee may not accept the exact wording of amendment No. 90, I would like the Minister to address the point that, on an international comparative basis, judicial appointments commissions have lay members who have a sophisticated knowledge of appointments procedure and legal issues. Perhaps we could find a phraseology that would reflect the international 
 experience to the benefit of the Judicial Appointments Commission at home in Northern Ireland.

Andrew Turner: I must first express some concern at the failure, as I perceive it, of other Committee members to appreciate the points that were ably made by my hon. Friend the Member for Reigate. Those who have spoken about his amendment may have failed to appreciate—I find it almost incomprehensible—the perception by some parts of the community in Northern Ireland that anyone who is involved in the judicial process, particularly at the level of judicial appointment, is a Unionist. That may not be true, but it is a widespread perception. It arises because those people appear to be part of what is sometimes called the apparatus of the British state. Such perceptions demonstrate the importance of ensuring the ''representativeness'' of the whole commission, rather than just its lay members.
 Amendment No. 9, tabled by my hon. Friend the Member for Reigate, removes the requirement that a certain part of the commission be representative. Making the lay members representative would, at least in the perception of certain members of the community who regard judges as broadly of a Unionist persuasion, make the commission as a whole appear unrepresentative. I appreciate that the Minister has tried to apply himself to that point, and the hon. Member for Cheadle has also done so, but I have not yet heard a successful answer to my hon. Friend's point. 
 If the Committee rejects my hon. Friend's amendment, I have some sympathy with amendment No. 144 tabled by the hon. Member for Cheadle, because ''reflective'' and ''representative'' do not have the same meaning. We are looking for reflection of the community, rather than representativeness, because it is inappropriate that on a commission of this kind the membership should be appointed in a representative way. We want people who reflect the diversity of the community, but we should not believe that individuals on the commission represent their own communities. It would be sensible to accept the hon. Lady's amendment if subsection (7) remains in the Bill. 
 My second reason for being concerned about the subsection is the weight applied to it in making appointments and in the litigation that follows appointments that do not meet the pattern that some may expect. Such litigation is inevitable, so the point is important. So far as I can see, the only requirement that the Bill imposes on the appointment of members of the Judicial Appointments Commission is that contained in subsection (7). I see no requirement in the Bill for appointments to the commission to be made on merit. 
 If merit is to be a consideration of greater importance—as my hon. Friend the Member for Reigate and, I believe, the hon. Member for Cheadle assumed—it should be written in to take priority over subsection (7). That does not appear to be the case. For that reason, I welcome amendment No. 90, as proposed by my hon. Friend the Member for North Down. It may not be perfect, but at least it recognises 
 that merit is more important than representativeness, reflectiveness, gender or ethnicity. 
 We want on the commission people who are capable of doing the job, but there seems to be no suggestion in the Bill that the members should be capable of doing the job. That may be called an assumption, but Ministers have said that judicial interpretation is likely to give priority to what is written into legislation over assumptions that may generally be made. 
 For those reasons, I hope that my hon. Friend the Member for Reigate will press amendment No. 9 to a Division. If he does not do so successfully, I shall be happy to support amendment No. 144.

Seamus Mallon: The speech by the hon. Member for Isle of Wight (Mr. Turner) shows the importance of the matter raised by the hon. Member for Reigate. It is a matter that will return as we progress through the Bill. In aiming for reflectiveness in those appointed to the commission, we come up against a problem. If there were a requirement for representativeness in the appointment of all sections of the commission, I venture to suggest that some might view the wording of subsection (7) differently.
 The hon. Member for Isle of Wight makes a valid point: the merit principle does override when it is measurable, as it is in judicial appointments. We must consider the question of legality because, if the merit principle does not apply, the process is illegal. The hon. Gentleman says that the Bill is silent on that point—I take his judgment on that, as I cannot verify it myself. 
 However, one does not necessarily apply the merit principle exclusive of representativeness. The hon. Member for Cheadle made the valid point that the reason for the exclusion of certain groupings—women, ethnic groups, nationalists, Catholics, call them what you like—is not lack of merit but something different, and we must find a way of dealing with it. I tabled an amendment that I hoped could have been debated on Tuesday, but I made a mistake in its placing on the amendment paper. However, I hope to speak to it today and try—do not know how successfully—to get that representativeness reflected in the Bill. 
 I shall make some observations on amendment No. 90. A ''sophisticated knowledge'' and understanding of legal issues is difficult to define, but among its members, the Committee has various levels of sophisticated understanding of legal matters. That would be the case in any group, but it does not preclude good judgment. It is good judgment that we must ensure, and that is the merit of the lay appointments. Minds that are capable of good judgment may not be clouded with a sophisticated understanding—or the lack of it—of legal matters.

Lady Hermon: May I draw the hon. Gentleman's attention to one of the provisions of schedule 2? We are spending a lot of time discussing the composition of the Judicial Appointments Commission—it is a valuable discussion—but I hope that the hon. Gentleman has noted that the commission can delegate its work to sub-committees, including the power to make judicial appointments, with the
 recommendation that each committee must have a lay member. Does he not agree, therefore, that the lay members need a
sophisticated knowledge of legal issues
 and appointment procedures in order to help at that level?

Seamus Mallon: I certainly agree with the hon. Lady that it would help, but I know of people with a very sophisticated knowledge of legal matters who are not always able to bring to the case the qualities of good sense and judgment that would be required of a lay person. However, I do not think the issue will divide us. I am more worried that such people should have a proven understanding of selection procedures.
 I have seen selection procedures in use for a long number of years—in district councils, the Palace of Westminster, the Northern Ireland Assembly and the civil service. I would be much more worried about lay members' interpretation of the selection procedure than I would be about their legal sophistication. My experience is that selection is controlled by either the civil service or, in a political sense, the Whips. The selection procedure is the controlling factor. I welcome lay participation because lay people would have open minds and be more likely to understand some of the ways in which selections are made.

Des Browne: This has been a useful debate. Important issues were raised, and all contributions were welcome, as they give me an opportunity to explain why the Government have chosen to implement faithfully the recommendations of the review in this regard—that is, recommendations 78 and 79, a discussion of which can be found in paragraphs 6.103 and 6.104 of the review. I shall endeavour to deal with all the issues that have been raised and I hope that hon. Members will be satisfied that the Government's approach is appropriate, so that we will not need to return to the issue in any depth later, as it may surface in relation to other clauses.
 I am now clearer about the intention of amendment No. 9. The amendment tabled by the hon. Member for Reigate would remove the requirement on the First Minister and Deputy First Minister to ensure that lay members of the Judicial Appointments Commission are representative of the community, although I thought that that was what he wanted. The amendment takes some explaining, which is perhaps why the hon. Member for Isle of Wight thought that he had to try to explain it to us again. He explained why taking the word, ''representativeness'' out of the Bill was intended to put representativeness into the process. 
 One can argue that the amendment runs contrary to the review recommendation that requires the First Minister and Deputy First Minister to secure representativeness in the lay members of the commission. The review even specifies that that should be achieved through legislative provision, which is exactly what we have done. The hon. Member for Reigate also explained that he knows for a fact that the tiers of the judiciary in Northern 
 Ireland are predominantly male and Unionist. The hon. Member for Isle of Wight said that that was just a perception. But whether it is perception or fact, the hon. Member for Reigate went on to explain that the ability of the First Minister and Deputy First Minister to balance membership of the Judicial Appointments Commission, which will necessarily read across, necessitates the liberalisation of their roles. 
Mr. Blunt indicated assent.

Des Browne: The hon. Gentleman nods his head, which means I have got it right, in which case I am pleased.
 Our fundamental problem with that approach is that, for very understandable reasons relating to the administration of justice and the independence of the judiciary, the Government wish to avoid, not encourage, any assessments of the political balance of the judiciary or any process that puts the spotlight on judges to try to establish their political inclination, or a concentration on whether they are Catholics or Protestants or come from nationalist or Unionist backgrounds. 
 It seems to me that the necessary consequence of the approach of the hon. Member for Reigate is that that spotlight needs to be trained on judges, and that some not opaque but explicit assessment of an individual judge's ability to represent a part of the community—not only in political and religious terms but in gender and ethnic terms, although gender and ethnicity are more straightforward and obvious— 
Mr. Blunt rose—

Des Browne: If the hon. Gentleman will just allow me to finish this important point.
 The Government are adamant that we should do nothing that runs contrary to the first clause of the Bill, which protects the independence of the judiciary by treating it as being representative of any part of the community. The independence of the judiciary and the merit, ability and professionalism of its members, not how representative they are of the community, are what qualify them to do their jobs. Judges do not represent any particular part of the community, and there should be no read-across to that effect in the Bill. Nor should judgments be made to that effect, regardless of whether judges are acting in their capacity as judges or in their additional capacity as members of the commission, as some will be asked to do under the Bill. That seems to me to be a complete answer to the question of reading across representativeness in the context of judges, whether they are on the bench or members of the commission.

Crispin Blunt: The Minister will be aware that paragraph 5(3) of schedule 2 refers to those who apply for appointment to the commission. It states that the annual report
must include information about their gender, age, ethnic origins and community background.
 I accept that paragraph (5) goes on to say that 
an annual report must not identify any person or include information from which the identity of any person could be readily ascertained,
 but that will be enormously difficult to achieve, given the small size of the judicial community. The Minister ascribes some importance to that objective, but the Government will have a problem achieving it. That is why the First Minister and the Deputy First Minister should be given greater freedom.

Des Browne: I am grateful to the hon. Gentleman, but he conflates another part of the Bill with his desire to assess judges' ability to represent parts of a community that we know is divided. He wants there to be a read-across into appointments of lay representatives by the First and Deputy First Minister so that there can be a balance. That is, however, entirely different from providing for a post hoc report to give the public appropriate information about the commission's actions and make-up. The hon. Gentleman seeks to make individual judges, and particularly—this is his argument—their politics, representative of parts of the community. We seek absolutely to avoid that and to put a bar on such an approach, which would undermine the whole judicial system. The hon. Gentleman is nodding, and although I do not know whether that indicates that he understands and accepts my argument, there is no answer to it. That is why the review concluded—it did not spell this out—that a representative commission must be arrived at through the lay membership, however difficult that might be. If that was not why it reached that conclusion, it is certainly an additional reason for doing so.
 Amendment No. 144, which was tabled by the hon. Member for Cheadle, requires that lay members be ''reflective'' rather than ''representative'' of the community. We could spend a whole day discussing the difference between those words, but I am not sure why, in the context of the commission, we should tinker with a word that the people of Northern Ireland are becoming used to and which judges are becoming used to interpreting. There is a body of understanding as regards its definition and parameters. 
 There is, of course, a world of difference between the judiciary, which the review says should be reflective, and the commission's lay membership, which should be seen to represent different parts of the community. The word ''representative'' has been used for numerous public bodies, such as the Northern Ireland Human Rights Commission, and we have heard of the litigation over the representativeness of the Parades Commission. It is helpful that that body of definitions and understanding is growing, although there will be some confusion at the beginning of the process. However, at least we have a better understanding of representativeness in relation to commissions such as the one that we are considering than we would have if we substituted the word ''reflective''. I do not understand why the hon. Lady and her hon. Friend the Member for Montgomeryshire think that that change is important for the commission that we are dealing with, as opposed to any other.

Patsy Calton: I understand the Minister's argument that the word ''representative'' has assumed a meaning that is in one sense synonymous with ''reflective''. However, in another sense it is not synonymous, and
 might imply that the membership had been chosen to represent a certain section of the community.

Des Browne: I think I can help the hon. Lady in that regard. There may be some discussion later about whether it is appropriate to use the idea of representativeness in thinking about the judiciary. I have a basic argument about that, which flows from my earlier argument: judges should not represent a particular part of the community. However, there is a difference in the case of a commission of the kind we are discussing, which will operate on a collegiate basis. I think that there is growing understanding of that in Northern Ireland, for obvious reasons.
 It is important that the make-up of commissions such as the Northern Ireland Human Rights Commission, the Northern Ireland Parades Commission and, now, the Judicial Appointments Commission, which operate on a collegiate basis, should be representative. However, that does not mean that members should, once in their posts, operate as delegates or as people representing communities. Recently in Northern Ireland, people's ability to co-operate in collegiate settings has been apparent—and the Northern Ireland Policing Board has praised some of the decisions taken in those contexts. Those concerned are not seen as divided in what they do by delegate or representative roles, because they do not have them. There is a growing understanding among those who are asked to do such difficult jobs that, on taking up membership of a commission or a body with a collegiate nature, they cannot act in that way. 
 The Government do not expect that people who take posts on boards or organisations that are intended to be representative overall will behave as delegates. By and large they do not do so, which is encouraging. The process is bearing fruit. That is the fundamental reason for the Government's belief that we should use consistent phraseology in setting up such bodies, so that people get used to it. It is then possible to generate the circumstances in which people are known to work properly, and the bodies concerned can be examples to each other.

Patsy Calton: I shall not intervene again on this aspect of the matter, but the Minister has made my point for me. He is right. We agree completely and want the same outcome, but the word ''representative'' may—not in the Government's mind, but in the minds of others—mean something different. It is to ensure that it will be understood that ''reflective'' is what is meant, rather than ''representative'' or any of the nuances that it carries, that we pursue the matter.

Des Browne: I accept everything that the hon. Lady says, in that we have the same objective. My argument is that the use of the word ''representative'' in setting up previous commissions is bearing the fruit that we hoped it would. Members of those commissions are not acting as representatives of their community even though it was the fact that they were representative of it that enabled them to take a place on the commission in the first place. We want to build on that fact and we think that it would be confusing if, in the present instance, we were to use the word ''reflective''. People might then think that we meant something different from previously, and ask what the Government were
 playing at. We are building a body of action and of law, which is reinforcing what we all want to achieve, and we should continue on that course.
 Amendment No. 145 requires that the lay membership should reflect the community in terms of gender and ethnicity. The review recommended a provision similar to that used for the Human Rights Commission. The Government have always been clear that the word, ''representativeness'' covers all those issues—although we have to accept that there is a limit to how much can be achieved with a group of only five people or, indeed, with only three; there are constraints. I hope that that reassures the hon. Members for North Down and for Cheadle. 
 I know that there has been a decision in which the issue was raised and discussed, and an opinion was offered. The lawyers on this Committee could no doubt discuss the value of that expression of view and whether it is binding on anybody else. My understanding is that, in the course of that judgment, the judge said that he was not sure that the community was to be representative and that the context included gender; he did not rule on that. However, we must understand that the ruling was made in the context of the judicial review concerning appointment to the Parades Commission. It was important that the judge did not decide that point. 
 On behalf of the Government, I make it clear—I believe that that is what the hon. Member for North Down is looking for—that we intend to cover just the issues that the amendment that she supports is intended to cover. We expect that those appointing lay members to the commission will take into account ethnicity and gender in their decision-making process—so far as they are able to do, with the constraints of those who apply for the positions and the numbers. I am on record as having said in Committee and on the Floor of the House that one of my objectives, so long as I am the Minister with this responsibility, is to ensure that women and those from different ethnic backgrounds have their merit and ability recognised better in appointments in the justice system than has hitherto been the case.

Lady Hermon: On a point of information, could the Minister indicate at what level the judgment was given in the Evelyn White case, and who was involved in that judgment?

Des Browne: The hon. Lady asked for reassurance and I have given that, both in an intervention and in my comments. There are strong indicators that, if the Bill is enacted in its present form, the merit principle that will be applied by statute to judicial appointments in Northern Ireland will mean that those people who the hon. Lady says are underrepresented will be represented. Indications are that the pool of talent is far more reflective and representative of the groups that she is concerned about. Perhaps we shall return to her specific point about the decision, but I am content to make my position clear as a Minister.
 I am conscious of the time. The hon. Member for North Down's amendment requires the First and 
 Deputy First Ministers as far as possible to secure that lay members of the commission have a sophisticated understanding of legal issues as well as proven experience in the selection procedure.

Seamus Mallon: I thank the Minister for giving way at what might have been an inopportune time. I seek his advice on one matter. As I read it, it is theoretically possible that judicial appointments could be made without the involvement of any member of the Judicial Appointments Commission. Can the Minister tell me whether that is so? If it is, then there is something wrong. Paragraphs 11 and 12 of schedule 2 are not worded in a way that confirms that there must be such people on the body that makes the appointments.

Derek Conway: Order. The hon. Gentleman has made his intervention.

Des Browne: The hon. Gentleman is correct that that is a theoretical possibility. However, we shall come to debate the provisions to which he has drawn our attention in due course, and it will be appropriate to deal with those issues in detail then, when I can give some explanation of the structures that have been put in place.
 The hon. Member for North Down supported her amendment No.90 by reference to the research papers that agreed with the view taken by the review group. I am pleased that somebody has read the research papers, because it was not clear on Second Reading that other hon. Members had done so. I seek to reassure the hon. Lady that lay members will bring—

Crispin Blunt: Will the Minister give way?

Des Browne: In a moment. Lay members will bring valuable experience to the commission. It will be difficult to define in legislation what constitutes sophisticated knowledge of legal matters. The issue rather than the words is important. Those responsible for appointing lay members will, of course, have the benefit of the research that the review conducted to inform their choices.
 The merit principle applied to appointments of this nature is already enshrined in statute. I think that that reassurance was sought by other members of the Committee. It is a requirement and does not need to be written into the Bill. I shall give the Committee the statutory reference for that when I have it to hand—I hope that the hon. Member for North Down will take my word for it for now. In any event, there are clear, open, strictures and requirements governing public appointments, which are increasingly widely understood, and they include the merit principle. 
 There is enough information available in the work of the review and the research that it provided to inform those who are required to make decisions—they have enough ammunition. There is also an adequate legislative framework controlling the decisions of the First and Deputy First Ministers to require them to consider the qualifications and merits of people whom they appoint.

Lady Hermon: On a point of clarification, we have spent a lot of time in valuable discussion of the composition of the Judicial Appointments
 Commission, but my concern is that the commission will be able to delegate all its functions to sub-committees, including its part in a judicial appointment, and that the key person on such a sub-committee is the lay member. Does the Minister agree that it is essential for a lay member to have knowledge of legal issues and a sophisticated appreciation of appointment procedures?

Des Browne: I agree with the hon. Lady that those whom we expect to do the job, particularly if they are mixing with judges at the level that will be necessary, will have to have specialised skills and abilities. I am as inclined to agree with the hon. Member for Newry and Armagh about the qualifications that he thinks are necessary as I am with the hon. Lady about those that she says are necessary, albeit that hers are supported by academic research. I am not prepared to allow the Bill to impose restrictions or to give one qualification more importance than any other. I am content that those matters can be dealt with administratively by those whom we trust to do the job, and by pointing out clearly, as the hon. Lady does, that work has been done that suggests that certain skills are helpful. We shall discuss sub-committees later.
 I am conscious of the time. The hon. Member for Reigate indicated that he was content and did not want to intervene. We have more administrative work to do, so I conclude by urging the hon. Member for Cheadle to withdraw her amendment now that I have made my position clear.

Crispin Blunt: I was going to intervene earlier, but I shall make my point now. The Minister is treading on thin ice if he is suggesting that people have not done their homework. Has he read every piece of paper that came before the review group? A substantial number of people are listed in appendix A. Has he read and inwardly digested all their submissions, as well as the research reports at appendix B? Has he had a full debriefing on all the seminars listed in appendix C? It is beyond comprehension that he can give an affirmative answer with complete confidence, because of the enormous amount of work that has gone into those documents. That is why we have a review process. I have had to seek information from those who have made submissions—they have not sent them to me. They sent them to the Minister. I wonder whether he has read them all. The answer is probably no—that is why he has professional staff to support him and to draw his attention to key submissions. If he has read and digested everything, I take my hat off to him.

Derek Conway: Order. The hon. Gentleman knows that I see no advisers in the Room, and nor does he.

Crispin Blunt: I stand corrected, Mr. Conway. I request the Minister not to take us down that road, now or in the future.
 I listened carefully to the Minister, and to the hon. Member for Newry and Armagh in light of amendment No. 9. I would correct one point. My proposal would give the First and Deputy First Ministers only the potential to correct the make-up of the Judicial Appointments Commission; it would be up to them what they did. That does not imply a duty 
 or a necessity to do so. We have discussed the necessity to protect the independence of the judiciary. That presents a practical problem: because the judiciary is so small, everybody knows each other in those circles in Northern Ireland, and they know their backgrounds. However, I am content to accept the ideal standard that the Minister is seeking to achieve. 
 Having listened to those arguments and to those of the hon. Member for Newry and Armagh, in whose interest as a former Deputy First Minister the amendment was designed, I shall withdraw amendment No. 9. However, I am convinced by the arguments about the words ''reflective'' and ''representative'', and I shall support the hon. Member for Cheadle if she chooses to press amendment No. 144 to a vote. If the Minister's argument is that that will result in an inconsistency between the language in this and other legislation, I contend that the appointment of the judiciary is so important that one could sustain an argument that it is appropriate for the language in this Northern Ireland legislation to differ. I have some support for the argument in the wider sense in which it could be applied in Northern Ireland. That may be an important principle to establish and perhaps we should reflect on the meaning of those words. While that is not an enormous point, it is worth making. 
 I beg to ask leave to withdraw the amendment.

Patsy Calton: I should like to press amendment No. 144 to a vote for the reasons highlighted by several hon. Members, including the hon. Members for North Down and for Reigate. We would like a separate vote on amendment No. 145 for similar reasons, although I know that the hon. Member for Reigate feels less comfortable about that amendment. We believe that the amendments would significantly improve the Bill, and we hope that the Government will take them very seriously.
 Amendment, by leave, withdrawn.

Derek Conway: Before we vote on the hon. Lady's two amendments, I call the Minister to move the amendment to the programme motion.

Des Browne: I beg to move,
That the Programming Order of the Committee of 29th January be amended in paragraph (3) by leaving out ''11.25 am'' and inserting instead ''5 pm''.

Crispin Blunt: Whenever the Government remove a knife it is to be welcomed. The fact that the knife has been moved to somewhere slightly less uncomfortable is an improvement, although it is still not satisfactory. However, as it is an improvement, we will support the motion.

Lembit Öpik: We are making progress, although I am still concerned that we are making slow progress. I hope that the Minister will be mindful of the fact that, at this rate, we will need more sittings.
 Question put and agreed to. 
 Amendment proposed, No. 144, in page 3, line 3, leave out 'representative' and insert— 
'reflective.'—[Mrs. Calton.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 13.

Question accordingly negatived. 
 Amendment proposed, No. 145, in page 3, line 3, at end insert 
', including in terms of gender and ethnicity.'—[Mrs. Calton.] 
 Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 16.

Question proposed, That the clause stand part of the Bill.

Seamus Mallon: On a point of order, Mr. Conway. I seek your guidance. After the long debate that we have had I am becoming more convinced that it is theoretically possible for judicial appointments to be made under the clause and under schedule 2 without any members of the Judicial Appointments Commission taking part. I seek your advice as to when that aspect of the matter might be dealt with. Should it be when we debate the schedule, and, if so, how will that affect the decision on clause stand part?

Derek Conway: I am grateful for that point of order. The Committee can now, if it pleases, debate the question that clause 3 stand part of the Bill. When that is disposed of, we shall deal with the amendments to schedule 2, in order. Of course a debate can take place, if the Chairman allows it later today, on the question that schedule 2 stand part of the Bill. The hon. Gentleman will have both those opportunities to refer to the matters in question.
 Clause 3 ordered to stand part of the Bill.

Schedule 2 - Judicial Appointments Commission

Patsy Calton: I beg to move amendment No. 147, in page 71, line 29, leave out 'five' and insert—
'three'.

Derek Conway: With this we may take amendment No. 148, in schedule 2, page 71, line 31, leave out 'ten' and insert—
'six'.

Patsy Calton: The amendments would reduce the membership period for lay members of the commission. The Bill provides for them to be appointed for five years at a time, and for no longer than 10 years altogether. We have suggested that three years might be a better time frame in which to allow fresh minds on to the commission. We are probing to find out why a term of five years has been selected.

Des Browne: I am grateful for the amendment. The matter is one of judgment based on experience and consultation with those who operate in the relevant sphere. It relates to the nature of the job and people's ability to build expertise over time. The Government take the view that five years is an appropriate time.
 I understand why the hon. Lady thinks that five years is too long. The judgment of Solomon might split the difference, but I do not plan to do that, because the Government think that five years would allow the members of the commission to build the experience that would enable them to work together, given the nature of the work and the frequency with which they would be asked to do it. We recognise the need for the membership to change, rather than to stagnate, but members must have sufficient time to begin to operate effectively. The Government have got the balance right, for the reasons that I have given.

Patsy Calton: I thank the Minister for his reply, and we accept his argument. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Lady Hermon: I beg to move amendment No. 91, in page 71, line 34, leave out 'may' and insert—
'must'.
 It may assist hon. Members to look at paragraph 2(4), which states: 
The First Minister and the deputy First Member, acting jointly, may dismiss a non-judicial member
 who they are satisfied is unable to fulfil his functions for the reasons listed. 
 By replacing the word ''may'' with the word ''must'', my amendment would remove the discretion that is given to the First Minister and Deputy First Minister and impose a duty on them. A non-judicial member who is unable or unfit to exercise his or her functions should be dismissed—that should be a clear duty, not a discretionary matter. There has been a slight oversight, which the amendment would remedy.

Des Browne: I am grateful to the hon. Lady for being so concise. The amendment makes it clear that the intention is to remove discretion. As the hon. Lady helpfully said, the Bill provides for dismissal in certain
 cases, and she drew our attention to the applicable paragraphs.
 In such cases, the Government would expect the First Minister and Deputy First Minister to act in the way set out in the Bill. It would, however, be inappropriate to impose a duty, because several of the reasons for dismissal are matters of fact, on which the First Minister and the Deputy First Minister would have to reach a judgment. Paragraph 2(4)(a) refers to a member who 
has without reasonable excuse failed to exercise his functions,
 and there is a list of reasons. There would, therefore, be an element of discretion, with or without the amendment. Although the policy is clear, all cases will not be clear-cut.

Lady Hermon: Am I to understand that the Minister accepts that the First Minister and Deputy First Minister are not obliged to dismiss a non-judicial member who
has been convicted of a criminal offence?
 Is he telling us that they would still have an element of discretion when considering whether to dismiss such people?

Des Browne: The Government's position is that there is discretion because paragraph 2 contains the word ''may'', not the word ''must'', which is why the hon. Lady has tabled an amendment. There is a list of circumstances that may apply, some of which are not as clear-cut as a person being bankrupt or being convicted of a criminal offence. The hon. Lady will know that the issue of whether someone has accumulated a criminal record exercises the minds of judges, so such matters can cause debate even though they seem clear-cut.
 I light on that particular issue only because the hon. Lady did, and it is clear from the list that some of the circumstances are matters of judgment, which implies that there will be an element of discretion in any event. Our policy makes it clear that the First Minister and Deputy First Minister will act in the way set out in the schedule. As in many other parts of the Bill, there is an element of trust that the First Minister and Deputy First Minister will act appropriately. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.